EXHIBIT 2.2(B)
AMENDMENT TO MERGER AGREEMENT
THIS AMENDMENT TO MERGER AGREEMENT (the "Amendment") is executed effective
as of the 20th day of August, 1998, by and among INNOVATIVE VALVE TECHNOLOGIES,
INC., a Delaware corporation ("Invatec"), CECORP, INC., a Delaware
corporation and successor-by-merger to Xxxxxxx Acquisition, Inc. and Xxxxxxx
Equipment Corporation, XXXXXX X. XXXXXXX, XX., an individual residing in Texas,
and XXXXX X. XXXX, an individual residing in Texas. All defined terms contained
herein shall have the same meanings as contained in that certain Merger
Agreement dated effective July 9, 1998, executed by Invatec, Xxxxxxx
Acquisition, Inc., Xxxxxxx Equipment Corporation, Xx. Xxxxxxx and Xx. Xxxx (the
"Merger Agreement"), except as otherwise specifically indicated herein.
WHEREAS, each of the parties has determined that it is in his or its best
interest to modify the terms of the Merger Agreement with respect to the
post-closing adjustment to the value of the Invatec Common Stock, as hereinafter
set forth;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows
i. Paragraph 6 of the Merger Agreement is hereby deleted in its entirety,
and substituted therefor is the following:
"PARAGRAPH 6. POST-CLOSING ADJUSTMENT OF VALUE OF INVATEC COMMON
STOCK. Notwithstanding the foregoing or any provision hereof to the
contrary, if the Current Market Price as of the Subsequent Measurement
Date is less than the Agreed Closing Value of Invatec Stock, then Invatec
will pay each Stockholder for each share of Invatec Common Stock issued to
such Stockholder in the Acquisition (after giving effect to any adjustment
pursuant to PARAGRAPH 5) and still owned by such Stockholder as of the
Subsequent Measurement Date, the amount by which the Agreed Closing Value
of Invatec Stock exceeds the greater of (a) the Current Market Price as of
the Subsequent Measurement Date or (b) Two Dollars and 50/100 ($2.50). The
Parties acknowledge and agree that the foregoing calculation cannot result
in a payment to Stockholders greater than Seven and 50/100 Dollars ($7.50)
per share of Invatec Common Stock. At least one-half (1/2) of the payment,
if any, to be made by Invatec pursuant to this PARAGRAPH 6, shall be made
by Invatec issuing to each Stockholder Invatec Common Stock at a per share
price equal to the Current Market Price as of the Subsequent Measurement
Date. The Parties acknowledge and agree that no payment shall be due from
Invatec with respect to any shares of Invatec Common Stock sold prior to
the expiration of one year from the date of the Merger Agreement."
ii. Paragraph 8(B) of the Merger Agreement is hereby deleted in its
entirety, and substituted therefor is the following:
Invatec represents and warrants to Stockholders that the shares of Invatec
Common Stock delivered to Stockholders in payment of the Acquisition
Consideration will be fully registered stock with the SEC, freely
transferable by Stockholders at any time without limitation, except as
otherwise restricted under Rule 145 promulgated under the Securities Act
and other applicable securities laws.
iii. The parties hereby acknowledge and agree that the closing price of
the Invatec Common Stock as of August 19, 1998, was three and three-fourths
($3.75).
iv. All other terms, conditions and covenants contained in the Merger
Agreement shall remain in full force and effect except as expressly amended
herein. The parties hereby authorize, adopt, ratify, confirm and approve the
Acquisition on the terms and conditions set forth in the Merger Agreement,
except as the same are expressly amended hereby.
v. Each of the undersigned representatives of each party hereto represents
and warrants that his signature constitutes the valid and binding act of such
party, and that he has been duly authorized, empowered and directed to execute
and deliver this Amendment.
vi. This Amendment embodies the entire agreement and understanding among
the parties relating to the subject matter hereof, and supersedes all prior
proposals, negotiations, agreements, commitments and understandings relating to
such subject matter. There are no unwritten agreements among the parties. This
Amendment, when executed by the parties hereto, shall be binding upon and inure
to the benefit of the parties hereto, and their respective personal
representatives, successors and assigns.
vii. This Amendment may be executed simultaneously in a number of
identical counterparts, each of which shall be an original and all of which
together shall constitute but one and the same instrument. Facsimile signatures
shall be treated as original signatures for all purposes relating to this
Amendment.
IN WITNESS WHEREOF, this Amendment has been executed and delivered to be
effective as of the date first set forth above.
INNOVATIVE VALVE
TECHNOLOGIES, INC.
By: _________________________________
Xxxxxxx X. Xxxxxxxx,
Senior Vice President
CECORP, INC.
By: _________________________________
Xxxxxxx X. Xxxxxxxx,
Senior Vice President
____________________________________
XXXXXX X. XXXXXXX, XX.
____________________________________
XXXXX X. XXXX
